Foreclosure Act

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CS/HB 213 2012

CODING: Words stricken are deletions; words underlined are additions.hb0213-01-c1

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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

A bill to be entitled1

An act relating to mortgage foreclosures; amending s.2

95.11, F.S.; reducing the limitations period for3

commencing an action to enforce a claim of a4

deficiency judgment subsequent to a foreclosure5

action; providing for application to existing causes6

of action; amending s. 702.10, F.S.; expanding the7

class of persons authorized to move for expedited8

foreclosure; defining the term "lienholder"; providing9

requirements and procedures with respect to an order10

directed to defendants to show cause why a final11

judgment of foreclosure should not be entered;12

providing that certain failures by a defendant to make13

certain filings or to make certain appearances may14

have specified legal consequences; requiring the court15

to enter a final judgment of foreclosure and order a16

foreclosure sale under certain circumstances; amending17

a restriction on a mortgagee to request a court to18

order a mortgagor defendant to make payments or to19

vacate the premises during an action to foreclose on20

residential real estate to provide that the21

restriction applies to all but owner-occupied22

residential property; providing a presumption23

regarding owner-occupied residential property;24

requesting the Supreme Court to adopt rules and forms25

for use in expedited foreclosure proceedings; creating26

s. 702.11, F.S.; providing for expedited foreclosure27

proceedings for abandoned residential real property;28



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providing procedures and requirements for such29

foreclosures; creating s. 702.12, F.S.; requiring30

certain documents to be filed contemporaneously with31

the filing of an initial complaint for foreclosure;32

providing legislative intent; providing that failure33

to file such documents does not affect title to34

property subsequent to a foreclosure sale; creating s.35

702.13, F.S.; providing for case management36

conferences in foreclosure proceedings; providing that37

a court may not order a continuance in a mortgage38

foreclosure proceeding unless the owner pays39

assessments due to a condominium, cooperative, or40

homeowners' association; providing application of this41

act to existing cases and causes of action and42

existing notes and mortgages; providing an effective43

date.44

45

Be It Enacted by the Legislature of the State of Florida:46

47

Section 1. Paragraph (b) of subsection (2) of section48

95.11, Florida Statutes, is amended, and paragraph (h) is added49

to subsection (4) of that section, to read:50

95.11 Limitations other than for the recovery of real51

property. — Actions other than for recovery of real property shall52

be commenced as follows:53

(2) WITHIN FIVE YEARS. — 54

(b) A legal or equitable action on a contract, obligation,55

or liability founded on a written instrument, except for an56



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action to enforce a claim against a payment bond, which shall be57

governed by the applicable provisions of ss. 255.05(10) and58

713.23(1)(e), and except for an action for a deficiency59

judgment, which shall be governed by paragraph (4)(h).60

(4) WITHIN TWO YEARS. — 61

(h) An action to enforce a claim of a deficiency related62

to a note secured by a mortgage against real property. The63

limitations period shall commence on the 11th day after the64

foreclosure sale or the day after the mortgagee accepts a deed65

in lieu of foreclosure.66

Section 2. The amendment to s. 95.11, Florida Statutes,67

made by this act shall apply to any action commenced on or after68

July 1, 2012, regardless of when the cause of action accrued,69

except that any action that would not have been barred under s.70

95.11(2)(b), Florida Statutes, prior to the amendments made by71

this act may be commenced no later than 5 years after the action72

accrued and in no event later than July 1, 2014, and if the73

action is not commenced by that date, it is barred by the74

amendments made by this act.75

Section 3. Section 702.10, Florida Statutes, is amended to76

read:77

702.10 Order to show cause; entry of final judgment of78

foreclosure; payment during foreclosure. — 79

(1) Any lienholder After a complaint in a foreclosure80

proceeding has been filed, the mortgagee may request an order to81

show cause for the entry of final judgment in a foreclosure82

action. For purposes of this section, the term "lienholder"83

includes the plaintiff and any defendant to the action who holds84



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a lien encumbering the property or any defendant who, by virtue85

of its status as a condominium association, cooperative86

association, or homeowners' association, may file a lien against87

the real property subject to foreclosure. Upon filing, and the88

court shall immediately review the request and the court file in89

chambers and without a hearing complaint. If, upon examination90

of the court file complaint, the court finds that the complaint91

is verified, complies with s. 702.12, and alleges a cause of92

action to foreclose on real property, the court shall promptly93

issue an order directed to the other parties named in the action94

defendant to show cause why a final judgment of foreclosure95

should not be entered.96

(a) The order shall:97

1. Set the date and time for a hearing on the order to98

show cause. However, The date for the hearing may not be set99

sooner than 20 days after the service of the order. When service100

is obtained by publication, the date for the hearing may not be101

set sooner than 30 days after the first publication. The hearing102

must be held within 90 60 days after the date of service.103

Failure to hold the hearing within such time does not affect the104

validity of the order to show cause or the jurisdiction of the105

court to issue subsequent orders.106

2. Direct the time within which service of the order to107

show cause and the complaint must be made upon the defendant.108

3. State that the filing of defenses by a motion,109

responsive pleading, affidavits, or other papers or by a110

verified or sworn answer at or before the hearing to show cause111

may constitute constitutes cause for the court not to enter the112



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attached final judgment.113

4. State that any the defendant has the right to file114

affidavits or other papers before at the time of the hearing to115

show cause and may appear personally or by way of an attorney at116

the hearing.117

5. State that, if any the defendant files defenses by a118

motion, a verified or sworn answer, affidavits, or other papers119

or appears personally or by way of an attorney at the time of120

the hearing, the hearing time shall may be used to hear and121

consider the defendant's motion, answer, affidavits, other122

papers, and other evidence and argument as may be presented by123

any defendant or any defendant's counsel, and the court shall124

then make a determination as to whether a preponderance of the125

evidence and the arguments presented support entry of a final126

judgment of foreclosure, and if so, the court shall enter a127

final judgment of foreclosure ordering the clerk of the court to128

conduct a foreclosure sale.129

6. State that, if a the defendant fails to appear at the130

hearing to show cause or fails to file defenses by a motion or131

by a verified or sworn answer or files an answer not contesting132

the foreclosure, such the defendant may be considered to have133

waived the right to a hearing, and in such case, the court may134

enter a default against such defendant and, if appropriate, a135

final judgment of foreclosure ordering the clerk of the court to136

conduct a foreclosure sale.137

7. State that if the mortgage provides for reasonable138

attorney attorney's fees and the requested attorney attorney's139

fees do not exceed 3 percent of the principal amount owed at the140



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time of filing the complaint, it is unnecessary for the court to141

hold a hearing or adjudge the requested attorney attorney's fees142

to be reasonable.143

8. Attach the form of the proposed final judgment of144

foreclosure the movant requests the court to will enter, if the145

defendant waives the right to be heard at the hearing on the146

order to show cause. The form may contain blanks for the court147

to enter the amounts due.148

9. Require the party seeking final judgment mortgagee to149

serve a copy of the order to show cause on the other parties the150

mortgagor in the following manner:151

a. If a party the mortgagor has been served with the152

complaint and original process, or the other party is the153

plaintiff in the action, service of the order to show cause on154

that party order may be made in the manner provided in the155

Florida Rules of Civil Procedure.156

b. If a defendant the mortgagor has not been served with157

the complaint and original process, the order to show cause,158

together with the summons and a copy of the complaint, shall be159

served on the party mortgagor in the same manner as provided by160

law for original process.161

c. Service of process by publication may not be used162

except as provided in s. 702.11.163

164

Any final judgment of foreclosure entered under this subsection165

is for in rem relief only. Nothing in this subsection shall166

preclude the entry of a deficiency judgment where otherwise167

allowed by law. It is the intent of the Legislature that this168



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alternative procedure may run simultaneously with other court169

procedures.170

(b) The right to be heard at the hearing to show cause is171

waived if a the defendant, after being served as provided by law172

with an order to show cause, engages in conduct that clearly173

shows that such the defendant has relinquished the right to be174

heard on that order. Such The defendant's failure to file175

defenses by a motion or by a sworn or verified answer,176

affidavits, or other papers or to appear personally or by way of177

an attorney at the hearing duly scheduled on the order to show178

cause presumptively constitutes conduct that clearly shows that179

such the defendant has relinquished the right to be heard. If a180

defendant files defenses by a motion, or by a verified or sworn181

answer, affidavits, or other papers at or before the hearing,182

such action may constitute constitutes cause and may preclude183

precludes the entry of a final judgment at the hearing to show184

cause.185

(c) In a mortgage foreclosure proceeding, when a final186

default judgment of foreclosure has been entered against the187

mortgagor and the note or mortgage provides for the award of188

reasonable attorney attorney's fees, it is unnecessary for the189

court to hold a hearing or adjudge the requested attorney190

attorney's fees to be reasonable if the fees do not exceed 3191

percent of the principal amount owed on the note or mortgage at192

the time of filing, even if the note or mortgage does not193

specify the percentage of the original amount that would be paid194

as liquidated damages.195

(d) If the court finds that all defendants have the196



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defendant has waived the right to be heard as provided in197

paragraph (b), the court shall promptly enter a final judgment198

of foreclosure without the need for further hearing provided the199

plaintiff has shown entitlement to a final judgment. If the200

court finds that any the defendant has not waived the right to201

be heard on the order to show cause, the court shall then202

determine whether there is cause not to enter a final judgment203

of foreclosure. If the court determines that a preponderance of204

the evidence and the arguments presented support entry of a205

final judgment of foreclosure, the court shall enter a final206

judgment of foreclosure ordering the clerk of the court to207

conduct a foreclosure sale finds that the defendant has not208

shown cause, the court shall promptly enter a judgment of209

foreclosure. If the time allotted for the hearing is210

insufficient, the court may announce at the hearing a date and211

time for the continued hearing. Only the parties who appear,212

individually or through counsel, at the initial hearing need to213

be notified of the date and time of the continued hearing.214

(2) This subsection does not apply to foreclosure of an215

owner-occupied residence. As part of any other In an action for216

foreclosure, and in addition to any other relief that the court217

may award other than residential real estate, the plaintiff the218

mortgagee may request that the court enter an order directing219

the mortgagor defendant to show cause why an order to make220

payments during the pendency of the foreclosure proceedings or221

an order to vacate the premises should not be entered.222

(a) The order shall:223

1. Set the date and time for hearing on the order to show224



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cause. However, the date for the hearing may shall not be set225

sooner than 20 days after the service of the order. If Where226

service is obtained by publication, the date for the hearing may227

shall not be set sooner than 30 days after the first228

publication.229

2. Direct the time within which service of the order to230

show cause and the complaint shall be made upon each the231

defendant.232

3. State that a the defendant has the right to file233

affidavits or other papers at the time of the hearing and may234

appear personally or by way of an attorney at the hearing.235

4. State that, if a the defendant fails to appear at the236

hearing to show cause and fails to file defenses by a motion or237

by a verified or sworn answer, a the defendant is may be deemed238

to have waived the right to a hearing and in such case the court239

may enter an order to make payment or vacate the premises.240

5. Require the movant mortgagee to serve a copy of the241

order to show cause on the defendant mortgagor in the following242

manner:243

a. If a defendant the mortgagor has been served with the244

complaint and original process, service of the order may be made245

in the manner provided in the Florida Rules of Civil Procedure.246

b. If a defendant the mortgagor has not been served with247

the complaint and original process, the order to show cause,248

together with the summons and a copy of the complaint, shall be249

served on the defendant mortgagor in the same manner as provided250

by law for original process.251

(b) The right of a defendant to be heard at the hearing to252



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show cause is waived if the defendant, after being served as253

provided by law with an order to show cause, engages in conduct254

that clearly shows that the defendant has relinquished the right255

to be heard on that order. A The defendant's failure to file256

defenses by a motion or by a sworn or verified answer or to257

appear at the hearing duly scheduled on the order to show cause258

presumptively constitutes conduct that clearly shows that the259

defendant has relinquished the right to be heard.260

(c) If the court finds that a the defendant has waived the261

right to be heard as provided in paragraph (b), the court may262

promptly enter an order requiring payment in the amount provided263

in paragraph (f) or an order to vacate.264

(d) If the court finds that the mortgagor has not waived265

the right to be heard on the order to show cause, the court266

shall, at the hearing on the order to show cause, consider the267

affidavits and other showings made by the parties appearing and268

make a determination of the probable validity of the underlying269

claim alleged against the mortgagor and the mortgagor's270

defenses. If the court determines that the plaintiff mortgagee271

is likely to prevail in the foreclosure action, the court shall272

enter an order requiring the mortgagor to make the payment273

described in paragraph (e) to the plaintiff mortgagee and274

provide for a remedy as described in paragraph (f). However, the275

order shall be stayed pending final adjudication of the claims276

of the parties if the mortgagor files with the court a written277

undertaking executed by a surety approved by the court in an278

amount equal to the unpaid balance of the lien being foreclosed279

the mortgage on the property, including all principal, interest,280



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unpaid taxes, and insurance premiums paid by a plaintiff the281

mortgagee.282

(e) If In the event the court enters an order requiring283

the mortgagor to make payments to the plaintiff mortgagee,284

payments shall be payable at such intervals and in such amounts285

provided for in the mortgage instrument before acceleration or286

maturity. The obligation to make payments pursuant to any order287

entered under this subsection shall commence from the date of288

the motion filed under this section hereunder. The order shall289

be served upon the mortgagor no later than 20 days before the290

date specified for the first payment. The order may permit, but291

may shall not require, the plaintiff mortgagee to take all292

appropriate steps to secure the premises during the pendency of293

the foreclosure action.294

(f) If In the event the court enters an order requiring295

payments, the order shall also provide that the plaintiff is296

mortgagee shall be entitled to possession of the premises upon297

the failure of the mortgagor to make the payment required in the298

order unless at the hearing on the order to show cause the court299

finds good cause to order some other method of enforcement of300

its order.301

(g) All amounts paid pursuant to this section shall be302

credited against the mortgage obligation in accordance with the303

terms of the loan documents;, provided, however, that any304

payments made under this section do shall not constitute a cure305

of any default or a waiver or any other defense to the mortgage306

foreclosure action.307

(h) Upon the filing of an affidavit with the clerk that308



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the premises have not been vacated pursuant to the court order,309

the clerk shall issue to the sheriff a writ for possession which310

shall be governed by the provisions of s. 83.62.311

(i) For purposes of this subsection, there is a rebuttable312

presumption that a residential property for which a homestead313

exemption for taxation was granted according to the certified314

rolls of the latest assessment by the county property appraiser,315

before the filing of the foreclosure action, is an owner-316

occupied residential property.317

(3) The Supreme Court is requested to amend the Rules of318

Civil Procedure to provide for expedited foreclosure proceedings319

in conformity with this section. The Supreme Court is requested320

to develop and publish forms for use under this section.321

Section 4. Section 702.11, Florida Statutes, is created to322

read:323

702.11 Expedited foreclosure of abandoned residential real324

property. — 325

(1) As used in this section, the term "abandoned326

residential real property" means residential real property that327

is deemed abandoned upon a showing that:328

(a) A duly licensed process server has made at least three329

attempts to locate an occupant of the residential real property.330

The attempts must have been made at least 72 hours apart, and at331

least one of such attempts must have been made before 12 p.m.,332

between 12 p.m. and 6 p.m., and between 6 p.m. and 10 p.m. Each333

attempt must include physically knocking or ringing at the door334

of the residential real property and such other efforts as are335

normally sufficient to obtain a response from an occupant. The336



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process server must have no business affiliation with the owner337

or servicer of any mortgage on the residential real property or338

with the attorney or law firm representing such owner or339

servicer.340

(b) Two or more of the following conditions appear:341

1. Windows or entrances to the premises are boarded up or342

closed off or multiple window panes are broken and unrepaired.343

2. Doors to the premises are smashed through, broken off,344

unhinged, or continuously unlocked.345

3. Rubbish, trash, or debris has accumulated on the346

mortgaged premises.347

4. The premises are deteriorating and are below or in348

imminent danger of falling below minimum community standards for349

public safety and sanitation.350

5. Interviews with at least two neighbors in at least two351

different households indicate that the residence has been352

abandoned. The neighbors must be adjoining, across the street in353

view of the home, or across the hall in a condominium or354

cooperative.355

356

The process server making attempts to locate an occupant of the357

residential real property may provide, by affidavit and358

photographic or other documentation, evidence of the condition359

of the residential real property.360

(2)(a) Any party to a foreclosure action regarding361

residential real property appearing to be abandoned must file a362

petition before the court seeking to determine the status of the363

residential real property and to invoke an expedited foreclosure364



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proceeding relating to the property. Upon the filing of an365

affidavit of diligent search and inquiry and the affidavit or366

documentary evidence set forth in subsection (1), the clerk367

shall, upon request of the petitioner, issue subpoenas to368

electrical and water utilities serving the residential real369

property commanding disclosure of the status of utility service370

to the subject property, including whether utilities are371

currently turned off and whether all outstanding utility372

payments have been made and, if so, by whom.373

(b) If, after review of the response of the utility374

companies to the subpoenas and all other matters of record, the375

court determines the property to have been abandoned, the party376

entitled to enforce the note and mortgage encumbering the377

residential real property shall be entitled to foreclose the378

mortgage using the expedited mortgage foreclosure procedures set379

forth in s. 702.10 upon service by publication. However, service380

must be made on associations holding liens for dues and381

assessments and all other junior lienholders as required by law.382


read:384

702.12 Elements of foreclosure complaint; lost, destroyed,385

or stolen note affidavit. — The complaint in a foreclosure action386

alleging breach of a promissory note secured by a mortgage must387

contain affirmative allegations expressly made by the plaintiff388

at the time the proceeding is commenced that the plaintiff is389

the holder of the original note secured by the mortgage or must390

allege, with specificity, the factual basis by which the391

plaintiff is a person entitled to enforce the note under s.392



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673.3011 or under other applicable law. When a party has been393

delegated the authority to institute a mortgage foreclosure394

action on behalf of the holder of the note, the complaint shall395

describe the authority of the plaintiff and identify, with396

specificity, the document that grants the plaintiff the397

authority to act on behalf of the holder of the note.398

(1) Unless the complaint includes a count to enforce a399

lost, destroyed, or stolen instrument, the plaintiff shall cause400

to be filed with the court, contemporaneously with and as a401

condition precedent to the filing of the complaint for402

foreclosure, either:403

(a) The original promissory note; or404

(b) Certification, under penalty of perjury, that the405

plaintiff is in physical possession of the original promissory406

note. Such certification must set forth the physical location of407

the note, the name and title of the individual giving the408

certification, and the name of the person who personally409

verified such physical possession and the time and date on which410

possession was verified. Correct copies of the note and all411

allonges thereto shall be attached to the certification. The412

original note shall then be filed with the court prior to the413

entry of any judgment of foreclosure or judgment on such note.414

However, if the real property is in two or more jurisdictions415

and the original note has been filed with the clerk in another416

jurisdiction, the court may accept any competent proof of such417

note filed in the other jurisdiction.418

(2) When the complaint includes a count to enforce a lost,419

destroyed, or stolen instrument, an affidavit executed under420



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penalty of perjury shall be attached to the complaint. The421

affidavit shall:422

(a) Detail a clear chain of all assignments for the423

promissory note that is the subject of the action.424

(b) Set forth facts showing that the plaintiff is entitled425

to enforce a lost, destroyed, or stolen instrument pursuant to426

s. 673.3091.427

(c) Include as exhibits to the affidavit such copies of428

the note and allonges thereto, assignments of mortgage, audit429

reports showing physical receipt of the original note, or other430

evidence of the acquisition, ownership, and possession of the431

note as may be available to the plaintiff.432

(3) If the foreclosure case is dismissed without prejudice433

and without completion of a foreclosure sale, upon request of434

the plaintiff the clerk must return the original promissory note435

to the plaintiff without need for further order of the court.436

(4) The Legislature intends that the requirements of this437

section are to expedite the foreclosure process by ensuring438

initial disclosure of a plaintiff's status and the facts439

supporting that status and thereby ensuring the availability of440

documents necessary to the prosecution of the case. This section441

does not modify existing law regarding standing or real parties442

in interest. The court may sanction the plaintiff for failure to443

comply with this section, but any noncompliance with this444

section does not affect the validity of a foreclosure sale or445

title to real property subsequent to a foreclosure sale.446


read:448



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702.13 Defaults and case management conferences in449

foreclosure actions. — 450

(1) In any mortgage foreclosure case in which all451

defendants have been served and the defendants have failed to452

timely file an answer or other response denying, contesting, or453

asserting defenses to the plaintiff's entitlement to the454

foreclosure, the court, on its own motion or motion of any455

party, may enter defaults against nonresponding parties in456

accordance with the Florida Rules of Civil Procedure.457

Thereafter, the court shall direct the plaintiff in the458

foreclosure action to file all affidavits, certifications, and459

proofs necessary or appropriate for the entry of a summary460

judgment of foreclosure within a time certain or show cause why461

such a filing should not be made. The filing of these materials462

shall be construed as a motion for summary judgment, and the463

court may enter final summary judgment or set the case for trial464

in accord with its sound judicial discretion. This subsection465

does not restrict the authority of the court to set aside a466

default or a judgment granted thereon pursuant to the Florida467

Rules of Civil Procedure.468

(2) After all parties have been served and not earlier469

than 48 days after the filing of the foreclosure case, any party470

may request a case management conference at which the court471

shall set definite timetables for moving the case forward. If472

any other hearings are set in the case, the case management473

conference shall be conducted at the same time as the scheduled474

case. At the conference, the court may grant extensions or stays475

in the proceedings on a showing that the plaintiff and property476



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owner defendant are engaged in mediation or good faith477

negotiations with regard to a loan modification or other478

settlement only if the property owner pays, or the lender agrees479

to pay, applicable condominium, cooperative, or homeowners'480

association assessments coming due after the entry of the481

extension or stay and keeps such assessments paid current482

through the conclusion of the foreclosure action.483

Section 7. The amendments to s. 702.10, Florida Statutes,484

and the creation of ss. 702.11 and 702.13, Florida Statutes, by485

this act are remedial in nature and shall apply to causes of486

action pending on the effective date of this act. Section487

702.12, Florida Statutes, as created by this act, applies to488

cases filed on or after July 1, 2012.489

Section 8. The Legislature finds that this act is remedial490

in nature. Accordingly, it is the intent of the Legislature that491

this act shall apply to all mortgages encumbering real property492

and all promissory notes secured by a mortgage, whether executed493

before, on, or after the effective date of this act.494

Section 9. This act shall take effect July 1, 2012.495

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